Karnataka High Court
National Institute Of Mental Health And ... vs Sri G Suggappa on 19 December, 2013
-1-
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19TH DAY OF DECEMBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE H.BILLAPPA
WRIT PETITION No.66/2013 (L-TER)
BETWEEN:
National Institute of
Mental Health & Neuro Sciences,
Hosur Road,
Bangalore - 560 029.
Rep. by its Registrar. ...Petitioner
(By Sri.M.N.Prasanna, Adv.
For M/s. P.S.Rajagopal & Assts.,)
AND:
Sri.G.Suggappa.
S/o.Sri.Garudappa,
Aged about 49 years,
Earlier working as Driver in
National Institute of
Mental Health & Neuro Sciences,
Since dismissed from service and
Residing at Satyamangala
Somadevanahalli Post,
Tumkur Taluk,
Tumkur District. ...Respondent
(By Sri.V.S.Naik, Adv.,)
-2-
This petition is filed under Articles 226 and 227 of the
Constitution of India praying to call for the entire records
leading to the impugned award 12.7.2012 passed by the
Presiding Officer, III Additional Labour Court, Bangalore in
I.D.No.82/2009 under Ann-A.
This petition coming on for Dictating judgment this day,
the Court made the following:-
ORDER
In this writ petition under Articles 226 and 227 of the Constitution of India, the petitioner has called in question, the award dated 12.7.2012, passed by the III Addl. Labour Court, Bangalore, in I.D.No.82/2009 vide Annexure-A.
2. By the impugned award at Annexure-A, the Labour Court has set aside the order of dismissal and has directed the petitioner to reinstate the respondent into service with full backwages, continuity of service and consequential benefits. Therefore, this writ petition.
3. Briefly stated the facts are:
-3-
The respondent was working as a driver in the petitioner institution. He joined service on 20.2.1989. In the year 2003, it was alleged that on 5.5.2003 the respondent committed murder of one Sri.Venkanna, an employee of NIMHANS at about 3.30 p.m. in the shed of NIMHANS. When the respondent was transporting the dead body to a place in Tamilnadu in Ambassador Car bearing Registration No.MYW 9837, on 6.5.2003, the respondent and the other accused were arrested by the Tamilnadu police. A case in Cr.No.145/2003 was registered against the respondent and the other accused. It is stated, the respondent made voluntary statement on 6/7.5.2003. Pursuant to that, recovery was made. Thereafter, on 31.5.2003, the respondent was placed under suspension by the petitioner.
4. After investigation, charge sheet was filed against the respondent by the Wilson Garden police station for the offences punishable under sections 302, 201 r/w 34 of IPC. -4- After trial, the respondent was acquitted on 31.8.2006 in S.C.No.518/2003 by the Fast Tack Court-I, Bangalore.
5. Thereafter, on 23.8.2008, disciplinary proceedings were initiated against the respondent by issuing a charge memo. The respondent denied the charges. The enquiry officer, after holding enquiry, has held that the respondent is guilty of the charges. The Disciplinary Authority concurring with the findings recorded by the Enquiry Officer has imposed penalty of dismissal from service on 8.6.2009. A dispute has been raised in I.D.No.82/2009. The Labour Court by its order dated 18.10.2011 has held that the enquiry was fair and proper. Thereafter, on appreciation of the evidence on record, the Labour Court has reversed the findings recorded by the Enquiry Officer and has set aside the order of dismissal and has directed the petitioner to reinstate the respondent into service with full backwages, continuity of service and consequential benefits. Therefore, this writ petition.
-5-
6. The respondent has filed statement of objections denying the petition averments and contending that the writ petition is not maintainable and it is liable to be rejected.
7. The learned counsel for the petitioner contended that the impugned award cannot be sustained in law. He also submitted that the Enquiry Officer has held that the charges are proved. Two of the four charges have been proved by admission. Third and fourth charges are proved by confession and recovery. The Labour Court has erred while holding that the charges are not proved and directing reinstatement of the respondent into service with full backwages, continuity of service and consequential benefits. Further he submitted that the petitioner is an institution of international repute. The respondent was working as a driver. He was accused of murdering a co-worker. Therefore, even assuming the charges are not fully proved, then also, the Labour Court was not justified in directing reinstatement. It should have been reasonable compensation. Placing reliance on the decision of -6- the Hon'ble Supreme Court reported in (2006)4 SCC page 265 the learned counsel for the petitioner submitted that the acquittal in a criminal case is not a bar to initiate departmental proceedings. The confession made while in custody is admissible in a departmental proceedings.
8. Further placing reliance on the decisions reported in 1994 Supp (2) SCC page 520 and (1990)3 SCC page 565, the learned counsel for the petitioner submitted that in cases of loss of confidence there can be no reinstatement, it can be only compensation. Therefore, the impugned award cannot be sustained in law.
9. Further he submitted that mere delay in initiating departmental proceedings will not vitiate the proceedings. As criminal case was pending, there is delay in initiating the departmental proceedings. There is nothing wrong in it and no prejudice is caused to the respondent. He placed reliance on the decisions of the Hon'ble Supreme Court reported in 2007 (9) SCC page 86 and (2007) 14 SCC page 49. -7-
10. Further he submitted that having regard to the circumstances of the case and the reputation of the institution reinstatement was not proper. He placed reliance on the following decisions in support of his submission.
(1990) 3 SCC page 565 AIR 2010 S.C. page 502 (2008)3 SCC page 729 (2002) 9 SCC page 708 He therefore submitted that the impugned award cannot be sustained in law.
11. As against this, the learned counsel for the respondent submitted that the impugned award does not call for interference. He also submitted that the Labour Court on proper consideration of the material on record has rightly held that the charges are not proved. Consequently, the Labour Court has directed reinstatement with full backwages, continuity of service and consequential benefits and it does not call for interference. He also submitted that there is delay -8- in initiating departmental proceedings. The respondent was acquitted of all the charges on 31.8.2006 in S.C.No.518/2006. Apart from this, the respondent was released on bail on 14.8.2003 itself. Therefore, there was no impediment for the petitioner to initiate the departmental proceedings within a reasonable time. Further he submitted that after acquittal the respondent has requested the petitioner to reinstate him into service as per Annexures R2, R3, R4 and R5. Thereafter, the disciplinary proceedings have been initiated by issuing charge memo dated 28.3.2008. Obviously, disciplinary proceedings are tainted with malafides. There is inordinate delay of more than five years in initiating the disciplinary proceedings.
12. Further he submitted that after receipt of the court notice in the writ petition charge sheet has been issued. The disciplinary proceedings have been initiated only to deny the respondent reinstatement into service. He also submitted that the acquittal is a clear acquittal. The voluntary -9- statement said to have been made by the respondent has not been proved. Three witnesses MW.1 to 3 have been examined. Their evidence has been considered by the Sessions Court and the case has ended in acquittal. The documents produced by the respondent have not been considered by the Enquiry Officer. The findings recorded by the Enquiry Officer are perverse and cannot be sustained in law. Therefore, the Labour Court has rightly interfered with the findings recorded by the Enquiry Officer.
13. He also submitted that the respondent was falsely implicated in the case. Therefore, question of bringing disrepute to the institution does not arise. The findings recorded by the Labour Court are just and proper and therefore, it does not call for interference. He also submitted that there is no plea or charge regarding loss of confidence and therefore, it cannot be considered.
14. Placing reliance on the decision of the Hon'ble Supreme Court reported in AIR 2001 SC page 3645, the
- 10 -
learned counsel for the respondent submitted that loss of confidence must be pleaded and proved. In the present case, loss of confidence is neither pleaded nor proved.
15. Further placing reliance on the decisions of the Hon'ble Supreme Court reported in AIR 1999 SC page 1416 and AIR 2006 II LLJSC page 1075 the learned counsel for the respondent submitted that the respondent is acquitted of all the charges and therefore, there can be no departmental enquiry on the same set of facts.
16. Further placing reliance on the decision reported in 1990 II L.L.J. S.C. page.529 the learned counsel for the respondent submitted that there is no satisfactory explanation for the delay in initiating disciplinary proceedings. Therefore, the impugned award does not call for interference.
17. I have carefully considered the submissions made by the learned counsel for the parties.
- 11 -
18. The point that arises for my consideration is:
Whether the impugned award calls for interference?
19. It is relevant to note, the respondent was working as a Driver in the petitioner-institution. He had joined service on 20.2.1989. He was charge sheeted for the offences punishable under sections 302, 201 r/w 34 of IPC in S.C.No.518/2006. It was alleged that the respondent had committed murder of a co-worker by name Venkanna. After trial, the respondent has been acquitted of the charges on 31.8.2006 in S.C.No.518/2006.
20. Thereafter, the respondent has requested the petitioner to reinstate him into service as per Annexures R1 to R5. Subsequently, the petitioner has initiated departmental enquiry against the respondent. In all four charges have been framed. The respondent has explained charges 1 and 2 and denied charges 3 and 4.
- 12 -
21. The petitioner has examined in all three witnesses i.e., MWs 1 to 3. They have deposed regarding the involvement of the petitioner in the criminal case and that it has affected the reputation of the institution.
22. The Enquiry Officer has held that the charges are proved. The Disciplinary Authority concurring with the findings recorded by the Enquiry Officer has dismissed the respondent from service.
23. The respondent has raised Industrial dispute in I.D.No.82/2009. The Labour Court by its award dated 12.7.2012 has set aside the order of dismissal and has directed the petitioner to reinstate the respondent in to service with full backwages, continuity of service and consequential benefits.
24. The learned counsel for the petitioner contended that the Labour Court has erred in directing reinstatement with full backwages, continuity of service and consequential
- 13 -
benefits. The charges are proved. Therefore, the Labour Court was not justified in directing reinstatement with full backwages. He also contended that the delay in initiating departmental proceedings by itself is not fatal. The Labour Court was not justified in directing reinstatement as there is loss of confidence. At the most, if the Labour Court was of the opinion that the charges are not proved, then also, the Labour Court should have directed compensation and not reinstatement.
25. As against this, the learned counsel for the respondent submitted that the charges are not proved. The Labour Court has rightly directed reinstatement with consequential benefits and therefore, it does not call for interference.
26. In all four charges have been framed. Charge No.1 relates to respondent not informing the petitioner about the arrest within 48 hours. Charge No.2 relates to respondent leaving the headquarters without permission. Charge No.3
- 14 -
relates to involvement of the respondent in a criminal case and it has affected the reputation of the institution. Charge No.4 relates moral turpitude.
27. Insofar as charge No.1 is concerned, the respondent has explained the charge saying that he was not allowed to speak as he was in police custody. Insofar as charge No.2 is concerned, the respondent has explained it saying that his relative was not well and therefore, he had to leave the headquarters immediately. Charges 3 and 4 have been denied.
28. Insofar as charge Nos.1 and 2 are concerned, it is a fact that the respondent has not informed the petitioner about his arrest within 48 hours and he has left the headquarters without permission. Charge Nos.3 and 4 relate to involvement of the petitioner in a criminal case and it has affected the reputation of the institution. To prove charge Nos.3 and 4, the petitioner has examined MWs 1 to 3. MWs 1 and 3 are police officers. They have deposed regarding
- 15 -
registering of the case and recording of the voluntary statement of the accused and recovery. MW-3 has deposed that the respondent was arrested and recovery was made pursuant his voluntary statement. MW-2 has deposed about the involvement of the respondent in a criminal case and it has affected the reputation of the institution. The evidence of MW-1 and MW-3 has been considered by the Sessions Court and it has resulted in acquittal. The evidence of MWs 1 to 3 does not prove the charges 3 and 4. The Labour Court has rightly held that the charges are not proved. However, the question is whether the Labour Court was justified in directing reinstatement with backwages, continuity of service and consequential benefits in the circumstances of the case.
29. The respondent was working as a driver in the petitioner-institution. The petitioner-institution is a reputed institution. The respondent was accused of murdering a co-worker. No doubt, the respondent has been acquitted of all the charges. But, the fact remains that the respondent
- 16 -
was accused of murdering a co-worker. In A.K.Dass Vs National Federation of Co-operative Sugar Factories Limited and Others reported in 1994 Supp (2) SCC page 520 the Hon'ble Supreme Court has held, though the charge was not well founded, the Labour Court was justified in awarding compensation refusing reinstatement on the ground that he was a driver and his job was one of confidence and the management has lost confidence in him. Similarly, in Bharat Fritz Werner (P) Limited and another Vs Workmen of Bharat Fritz Werner (P) Limited reported in (1990) 3 SCC page 565, the Hon'ble Supreme Court has held that reinstatement is not either desirable or expedient in certain cases where there is strained relations between the employer and the employee when the post held by the employee is one of trust and confidence. Therefore, it is appropriate to award compensation in lieu of reinstatement in the present case.
30. In O.P.Bhandari Vs Indian Tourism Development Corporation Limited and others reported in 1993 Supp (4)
- 17 -
SCC page 468 the Hon'ble Supreme Court has awarded compensation in lieu of reinstatement taking salary for 3.33 years and last drawn wages.
31. In N.Puttaswamy and another Vs Hindustan Machine Tools Limited & another reported in ILR 1998 KAR page 3253 this court has awarded compensation in lieu of reinstatement taking current wages and one month salary for every completed year of service.
32. In the present case, the respondent was working as a driver. He was charge sheeted for the offence of murder. The respondent was acquitted of all the charges on 31.8.2006. He was on bail from 14.8.2003. After acquittal, the respondent has requested the petitioner to reinstate him into service and also has approached this court. At that stage, the departmental enquiry has been initiated against the respondent. The Labour Court has found that the charges are not proved. Therefore, it has directed reinstatement with full backwages, continuity of service and consequential
- 18 -
benefits. However, in the circumstances of the case, it is appropriate to award compensation instead of reinstatement. In O.P.Bhandari's case last drawn wages and 3.33 years salary has been taken. In N.Puttaswamy's case current wages and one month salary for every completed year of service has been taken. The respondent was working as a driver. He has been acquitted of all the charges. There is delay in initiating departmental proceedings. The respondent has still service of 9 years. Therefore, it is appropriate to take the current wages and 40 months salary to award compensation.
33. The learned counsel for the petitioner submitted that the last drawn wages of the respondent was `.7,595/- per month and the current wages are `.22,500/- per month. If the current wages are taken, for 40 months it comes to `.9 lakhs. This would be a reasonable compensation instead of reinstatement.
- 19 -
Accordingly, the writ petition is allowed in part and the impugned award passed by the Labour Court in I.D.No.82/2009 dated 12.7.2012 is modified directing the petitioner to pay a sum of `.9 lakhs as compensation in lieu of reinstatement and consequential benefits. The award passed by the Labour Court stands modified accordingly. The petitioner shall not recover any amount paid towards subsistence allowance or 17(B) wages. The petitioner shall pay the amount within three months from the date of receipt of a copy of this order.
Sd/-
JUDGE Dvr: